Beasley objected to the PSI because it mentions bank robberies for which the he was never charged and for which he denied involvement. (Crim-DE# 47); (PSI at ¶¶ 49-54).

At the sentencing hearing, former FBI Agent Terry Mullen testified there were similarities between the instant offense and four uncharged bank robberies. (Crim-DE# 64 at 11-12). The robberies were of Washington Mutual banks, except one that involved a World Savings Bank. (Crim-DE# 64 at 15-16). In all the offenses, the perpetrators were dressed like ninjas in dark long-sleeved shirts and dark long pants, stocking masks, and gloves. They carried two-way radios and police scanners was well as a nylon gym bag for the money and AK-47 handguns and, one time, a shotgun. (Crim-DE# 64 at 18-19). They would put guns to bank employees’ heads, point guns at people in the bank, physically push people to the ground and threaten to kill them. (Crim-DE# 64 at 19-20). They would drive a stolen car to the bank and leave a safe-car nearby. After the offense, they would drive away in the stolen car then abandon it and flee in the safe-car. (Crim-DE# 64 at 20). Most of the offenses involved stolen Ford Taurus as getaway cars. (Crim-DE# 64 at 15-16). Beasley and his brother lived in Broward County in the same geographic area where the getaway cars were stolen. (Crim-DE# 64 at 17).

Explaining this due process claim:

Beasley appears to assert his sentencing violated due process because the Court relied on four additional offenses to which he did not plead guilty and for which he was not tried.

A court may consider relevant facts concerning a defendant’s background, character, and conduct when imposing a reasonable sentence. United States v. Amedeo, 487 F.3d 823, 833 (11th Cir. 2007). This includes consideration of a defendant’s uncharged criminal acts so long as those acts are proved by a preponderance of the evidence. See Nichols v. United States, 511 U.S. 738, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994) (noting uncharged conduct can be considered for sentencing purposes so long as it is proved by a preponderance of the evidence); United States v. Lindsey, 482 F.3d 1285, 1294-95 (11th Cir. 2007).

concluding:

Based on the foregoing, it is recommended that the motion to vacate be denied without an evidentiary hearing.

Objections to this report may be filed with the District Judge within fourteen days of receipt of a copy of the report.

Note also in the case opinion is reference to an AR-15 assault rifle, a Tech-9 rifle and a stolen white Ford Expedition.

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN,
SOUTHERN DIVISION

2010 U.S. Dist. LEXIS 103088

Decided August 4, 2010, by U.S. Magistrate Judge Paul J. Komives

Petitioner Kevin Potter is a state prisoner, currently confined at the Ionia Maximum Correctional Facility in Ionia, Michigan. On November 11, 2003, petitioner was convicted of conspiracy to commit first degree murder, Mich. Comp. Laws § 750.157a, 750.316, following a jury trial in the Wayne County Circuit Court. On December 9, 2003, he was sentenced to a mandatory term of life imprisonment without parole. Petitioner appealed as of right…

The court quotes the trial evidence from the respondent’s answer (so this is the government version of the facts). Three witnesses refer to a man dressed in black and it seems a neighbor witness Beverly Moore used the description “ninja”:

Scott Klass, an electrician, testified that he heard gunshots on the morning of September 19, 2002 and that he saw a man dressed all in black with a rifle and that he saw a van then come down the street, and the van was similar in style to the picture shown to him by the prosecutor. (TT 11/4/03, pp 61-63). Beverly Moore, who lives across the street from the victim’s family, testified that on the morning in question she saw a van parked in front of the Wright house and she wondered why it was blocking their driveway. (TT 11/5/03, pp 8-9). Ms. Moore heard noises but assumed it was firecrackers, but when she went outside she saw a “ninja” all in black with a gun in his hand. (TT 11/5/03, p 13). Another neighbor, Katherine McFarland, also testified about hearing shots and seeing a man all in black with a big, AK 47 type gun in his hands. (TT 11/5/03, pp 39-40).

The facts of this case also involve cocaine, marijuana, an AK-47, and “fire melted” skin. It seems Potter was dressed in black when he killed Mario Allen, on the steps of Mario’s home as Mario left to appear at his sentencing hearing for a drug related crime (a cocaine sale). It seems Mario’s two co-defendents in the drug sale hired Potter to kill Mario so that Mario wouldn’t show up at the sentencing. Then the co-defendants withdrew guilty pleas and prepared to face trial without Mario’s testimony.

In this instant case, Potter is petitioning the federal government for habeas relief but Magistrate Judge Komives finds no violations of federal law, concluding:

In view of the foregoing, the Court should conclude that the state courts’ resolution of petitioner’s claims did not result in a decision which was contrary to, or which involved an unreasonable application of, clearly established federal law. Accordingly, the Court should deny petitioner’s application for the writ of habeas corpus.

This pro se defendant was convicted of robberies and attempted carjacking and was described by witness testimony as wearing a ninja-suit and wielding an AK-47. Here the Court in 2007 denies motion for new trial.

CRIMINAL ACTION NO. 06-33-01
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Opinion by Judge Jan E. DuBois, decided August 24, 2007:

On February 22, 2007, a jury convicted defendant Andre Henry of crimes related to eight robberies of fast food restaurants; the straw purchase, possession, and use of assault weapons and other firearms; two armed bank robberies; conspiracy to commit a third armed bank robbery; an attempted carjacking that involved shots fired at a police officer; and solicitation to commit murder of a federal grand jury witness. Currently before the Court is defendant Andre Henry’s pro se Motion for Judgment of Acquittal and Motion for New Trial Pursuant to Fed. Rules of Crim. Proc. 29 and 33 (Document No. 473, filed April 12, 2007). For the reasons that follow, defendant’s Motion for Judgment of Acquittal and Motion for New Trial are denied.

Included in the facts:

one of the victim of the attempted carjacking, Janine McCullers, testified as follows during the trial:

[A]s I’m ready to pull out of the parking space, an individual is in front of my car in all black, like a Ninja-type suit, with a gun pointed at me, standing in front of the car with a gun aimed like this — in front of my car saying something

The court denies defendant’s motion for acquittal, finding sufficient mens rea to meet the elements of the crimes of carjacking. Additionally defendant’s motion for a new trial is also denied.